AIG Europe SA (formerly AIG Europe Ltd) v John Wood Group Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 24 September 2021 |
| Neutral Citation | [2021] EWHC 2567 (Comm) |
| Docket Number | Case No: CL-2021-000454, CL-2021-000484, CL-2021-000456 |
| Year | 2021 |
| Court | Queen's Bench Division (Commercial Court) |
[2021] EWHC 2567 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jacobs
Case No: CL-2021-000454, CL-2021-000484, CL-2021-000456
And in the Matter of the Arbitration Act 1996
And an Arbitration Application
David Scorey QC and Jeremy Brier (instructed by Clyde & Co LLP) for the Claimants/Applicants in CL-2021-000454 and CL-2021-000456
Ben Quiney QC and Nicola Atkins (instructed by DAC Beachcroft) for the Claimants/Applicants In CL-2021-000484
Roger Stewart QC and Saaman Pourghadiri (instructed by Bennett Jones LLP) for the Defendants/Respondents
Hearing dates: 15 th September 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A: Introduction
The Claimants, in three separate but related proceedings, are various insurers who seek to continue, on the return date, anti-suit injunctions which were granted on a without notice basis in August 2021. The injunctions relate to proceedings commenced by the Second Defendant against the Claimants in February 2021 in the Court of Queen's Bench of Alberta.
The policies issued by the Claimant insurers comprise a programme of excess liability insurance placed in the London market. The Defendants potentially require resort to that cover in relation to underlying proceedings which have been commenced, also in the Court of Queen's Bench of Alberta, by Nexen Energy ULC (“Nexen”) in relation to the failure of a pipeline which resulted in the leak of 5,000 cubic metres of bitumen into the environment. Nexen claims against a number of contractors, including a company called Sunstone Projects Ltd (“Sunstone”) which is alleged to be the predecessor in interest of the Second Defendant. Sunstone is alleged to have been negligent in the engineering, procurement, design and construction supervision work it performed for Nexen in relation to a pipeline system in Alberta.
The Alberta proceedings against the Claimant insurers are at a very early stage. At the time when the Claimants obtained anti-suit relief, they had not yet been served on the Claimants. The Defendants have said that they were protective for limitation purposes.
The basis of the application for anti-suit relief is, in the case of all the Claimants apart from Allied World Assurance Company (Europe) DAC (“AWAC”) in Claim CL-2021-000456, exclusive jurisdiction clauses in the relevant policies which provide for English jurisdiction. The Defendants' principal argument, in opposition to the application, is that none of the policies, on their true construction, contain effective exclusive jurisdiction clauses.
In relation to AWAC, the basis of the application for anti-suit relief is an arbitration agreement in the two policies to which it subscribed. These were the policies referred to at the hearing as the “Second Excess” and “Third Excess”. Those policies were also subscribed by other insurers, but AWAC is the only insurer who agreed an arbitration provision. There is no dispute that those policies do contain valid and effective arbitration agreements which provide for English arbitration. The Defendants argue, however, that no anti-suit injunction should be granted as a matter of discretion, because it would result in a multiplicity of proceedings.
In addition to these arguments, the Defendants contend that the injunctions should not be maintained because there was material non-disclosure by the various Claimants on the without notice applications.
B: Procedural background and the evidence served by the parties
The matter first came before the Commercial Court on 2 August 2021, in relation to proceedings which had been commenced by the Claimant insurers under the three higher layer policies in the excess programme. Those insurers are represented by Clyde & Co LLP (“Clydes”). Proceedings were subsequently commenced by a further insurer (Chubb European Group SE) represented by DAC Beachcroft LLP. Where it is necessary to distinguish between the various Claimants, I shall refer to the “(Clyde) Claimants” and to “Chubb”.
The proceedings brought by the (Clyde) Claimants concerned three policies, described in more detail below, which were referred to (and which are referred to in this judgment) as the “First Excess”, the “Second Excess” and the “Third Excess”. Two Claim Forms had been issued by the (Clyde) Claimants on 29 July 2021 in which anti-suit and related relief was claimed in respect of these policies. One Claim Form was an Arbitration Claim Form issued by AWAC. The other was a standard Claim Form, reflecting the fact that there was no relevant arbitration agreement, and that those insurers sought to establish the jurisdiction of the English court.
On 2 August 2021, the (Clyde) Claimants issued an application notice for injunctive relief, and sought an urgent hearing. The reasons for the urgency were set out, in a separate box on the first page of the skeleton argument of counsel, as follows:
“URGENCY and EX PARTE: This matter was originally considered urgent but not urgent enough for vacation business, as set out in the Witness Statement of Neil Beresford. However, at approximately 5.54pm on Friday 30 July, www.law360.co.uk published an article (see Annex B) referring to the claim which the Claimants have brought against the Defendants (see p.3/7 of Annex B). The matter is now highly urgent on the basis that the Defendants will have been alerted to the fact that the claim has been issued against them and inevitably will consider that anti-suit injunctive relief is being sought by the Claimants. Accordingly, matters could be progressed in the Courts of Alberta by the Second Defendant at any time and progressed with speed – including seeking an anti-anti-suit injunction or TRO (see below). The law.com article is not referred to in the Witness Statement of Neil Beresford as the statement was signed prior to the article being published. Accordingly, the witness statement understates the urgency of the application. The application is ex parte for the reasons set out at paragraphs 6–20 of Beresford [5/019–024] and the fact that if Wood Group had notice of the applications they could obtain an anti-anti suit injunction in Alberta, or suchlike.”
The evidence in support of the application was contained, as indicated in the text above, in a witness statement of Mr Neil Beresford, a partner in Clydes. The argument in support of the application was presented before me by Mr John Lockey QC on behalf of the Claimants in a hearing which lasted approximately 2 hours. I gave a brief judgment which explained my reasons for granting the application. In summary, I considered that, on the basis of the materials submitted by the Claimants, the claim for an anti-suit injunction in relation to the First and Third Excess, and AWAC's claim in relation to the arbitration agreement contained in its policies, were straightforward. I considered that the claim under the Second Excess was less straightforward, but was ultimately persuaded that it was appropriate to grant the relief.
The grant of these injunctions then led to a further application by Chubb. Chubb was the insurer under the first policy in the excess programme. I shall refer to this policy as the “Global Umbrella”. Chubb had not been party to the proceedings commenced by the (Clyde) Claimants under the three layers which sat above the Global Umbrella. Chubb made an urgent application to Cockerill J on 16 August 2021. The urgency arose from the fact that the other excess insurers had obtained the injunction on 2 August, the effect of which was to alert the Defendants to the existence of a significant jurisdictional challenge (by way of English proceedings) to the Alberta proceedings. Chubb therefore said that it was at risk, unless urgent relief was granted, of an anti-anti-suit injunction in Canada. The application was supported by a witness statement of Mr Christopher Wilkes, a partner at DAC Beachcroft. Cockerill J granted the injunctions sought.
Each of the injunctions provided for a return date which in due course became 15 September 2021. They also provided for various ancillary orders relating to service, but it is not necessary to describe those in detail.
In the period between the grant of the injunctions and the return date, further evidence was served by the parties. This evidence comprised two further witness statements from Mr Beresford; a second witness statement of Mr Wilkes; and two statements of Pamela Vidal on behalf of the Defendants. Ms Vidal is Managing Counsel for the Defendants through Wood Group USA Inc. Her work involves litigation, insurance, management of insurance counsel and legal matters for Wood affiliated entities.
One issue which was addressed in this evidence was the potential availability in Alberta of...
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